~ Strathmore University Centre for Intellectual Property and Information Technology Law (CIPIT)

Monthly Archives: March 2013

Today’s Question of the Day (QOTD) is on the duration of copyright where the author of the copyright work is a juristic person.

Authorship is at the core of copyright law. It determines ownership of copyright in the first instance. It provides a defence to alleged infringement. Most importantly, authorship determines the duration of copyright.

Section 2(1) of the Copyright Act defines an “author” in relation to the various categories of copyright works as a “person”

Section 23(2) of the Act states that copyright lasts for 50 years after the death of the author. The duration of copyright is computed from the end of the year in which the author dies for literary, musical and artistic works excluding photographs. The length of copyright protection is measured by reference to the human author’s lifespan.

The cumulative effect of these two sections of the Act would be that the word “person” refers only to a natural person, since the length of copyright protection is measured by reference to the human lifespan.

However, the current practice and procedures for copyright registration in Kenya allow for both natural and juristic persons to be applicants as well as authors for the purposes of copyright registration. Where the application for registration of copyright is successful, the copyright registration certificate issued by the Kenya Copyright Board (KeCoBo) may be in the name of either an individual or a company.

The question then arises, how long does the copyright last where the author is a juristic person and not a natural person?

Given that a juristic person, unlike a natural person, enjoys perpetual succession, does this mean that copyright in works of corporate authorship exist in perpetuity never to expire?

United States copyright law has a notion of cor­por­ate author­ship. Corporate authorship refers to “company-​​produced” works, so to speak, where for instance a bunch of employees develop a software or another copyrightable work that is owned by the employer and registered in the name of the employer. For works of cor­por­ate author­ship in the US, copy­right expires 120 years after cre­ation or 95 years after pub­lic­a­tion, whichever is earlier.

Meanwhile here in Kenya, this blogger is still wondering what is the date of expiry of copyright in cases of corporate authorship. In the absence of any legal or policy guidelines, this blogger is inclined to believe that the expiry of copyright in works of corporate authorship in Kenya must be guided by the provisions of section 23(3) of the Act, therefore such works would be considered as anonymous or pseudonymous works whose copyright expires fifty years from the end of the year in which the work was first published.

Over to you, esteemed readers, what are your thoughts on today’s QOTD?

At about 14h42 local time on March 9th 2013, the Chairperson of the Independent Elections and Boundaries Commission (IEBC) declared that Uhuru Muigai Kenyatta was the duly elected fourth President of the Republic of Kenya.

As the curtain closes on yet another General Election in Kenya, the following five IP issues are noteworthy:

1. The ‘Miguna’ Effect

Once upon a time, Mr. Miguna Miguna was a close aide to Prime Minister Raila Odinga – a key contender in the 2013 Presidential race. However, after a public falling-out with Odinga, Miguna published his explosive memoirs about Odinga titled: ““Peeling Back the Mask: A Quest for Justice in Kenya”. Several copyright issues arose surrounding this book, all of which were canvassed by this blogger here. Regardless of what Miguna’s motives were for publishing this damaging critique of Odinga and his inner circle, what remains clear for our purposes is that copyright protects all original works irrespective of literary quality.

2. Getting politicians to pay for use of music in election campaigns

During any election period, music is an important tool used by politicians to pass their campaign messages, market themselves and entertain crowds. Popular local songs were in high demand by politicians in their roadshows, concerts, rallies and other events countrywide. One record label in Kenya, Grandpa Records is reported to have issued a warning to politicians not to use any of its artists’ music without paying for such use. In carefully worded public statement, Grandpa Records is reported as having said:

“It has come to our attention that politicians across the country are heavily using music owned by Grandpa Records, along with Artist DNA’s back catalogue, for purposes of seeking popularity, self-promotion, and promotion of their agendas. In particular, the songs “Chapa [Fimbo inachapa]”, “Maswali Ya Polisi”, and “Banjuka Tu” are being exploited due to their massive popularity among all Kenyans, to catch their attention, and to sway potential voters. We would like to categorically state that we prohibit all political alliances, parties, and candidates from playing / using our music at political rallies, meetings, and any other forms of exploitation, without written consent from Grandpa Records. We will not hesitate to take legal action against any person or entity that will continue to exploit our intellectual property without our consent”.

This blogger applauds this record company’s pro-active steps to assert and protect its IP rights in the musical works. However the fact remains that policing of rights under copyright, particularly the communication to the public right/public performance right can be quite difficult for a single individual or entity working on its own. In this regard, the need for collective management of rights comes squarely into play. There are currently three separate collective management organisations (CMOs) that deal with copyright and related rights in musical works namely, the Performers Rights Society of Kenya (PRiSK), the Kenya Association of Music Producers (KAMP) and ofcourse, the Music Copyright Society of Kenya (MCSK).

As a matter of fact, during the elections, MCSK is reported to have issued a stern warning to politicians to obtain licenses for all public performances and reproductions of musical works. MCSK CEO Maurice Okoth is reported as saying: “We are urging all political parties and any other group holding public events where music is played to apply for a licence and comply with the law”. These licenses are issued based on the collecting society’s tariffs which depend on the nature of the exploitation and the duration. It was reported that one of the political parties, Raphael Tuju’s Party of Action (POA) paid 180,000 shillings for a the annual license for public performance issued by MCSK.

Dr. Evans Kidero was successful in his bid to be Nairobi County’s first Governor. However during his campaign, one of his posters caused some controversy as it was alleged that he had used a photograph that did not belong to him. This blogger discussed the Kidero case here and drew parallels with the well-known Shepard Fairey case involving the Obama “Hope” Poster in the United States. There was no doubt that Kidero was caught red-handed “borrowing” the freelance photographer’s work but luckily the matter was settled amicably out of court.

In passing, some have also remarked that the Republican Congress Party’s logo of a horse is quite similar to car manufacturer Ferrari’s logo, “cavallino rampante”/”prancing horse”. However a simple google photo search reveals that the RCP’s logo may have been appropriated from this site. This blogger wonders whether Najib Balala and the other party members obtained clearances and/or permission to use this photo as their logo.

4. What’s in a name? – UDF’s claim to the name “Jubilee”

In the run-up to the General Elections, political parties begun coalescing around so-called “alliances” or “coalitions” in a bid to increase their odds of capturing the various elective posts up for grabs including the Presidency. One such coalition was the “Jubilee Alliance” that was initially made up of Mr Musalia Mudavadi, Mr Uhuru Kenyatta and Mr William Ruto. These three men agreed that Mudavadi would be the presidential flag bearer for the Jubilee Alliance only for Kenyatta to refute the existence of this agreement while maintaining that he was the Coalition’s Presidential candidate and flagbearer. Mudavadi claimed that Kenyatta and Ruto had violated the terms of their agreement and in particular, it was reported that Mudavadi alleged that he (and his party, UDF) was responsible for the coining of the Alliance’s name and therefore claimed ownership over the word “Jubilee”.

University of Nairobi political scientist Dr. Adams Oloo, in supporting Mudavadi’s claim, is reported as having said:

“At Jevanjee (on December 3), the name jubilee was not used but at Laico Regency Hotel (the next day) we heard Ruto using the name Jubilee Coalition. Therefore if UDF can prove it contributed to the name and under the intellectual property rights law, all parties that patent a certain name have equal rights to it…”

Whether or not Dr. Adams Oloo was misquoted by the media report, what is clear is that one cannot “patent” a name! Furthermore, any ownership claim to the word “Jubilee” in intellectual property law would not even be considered by the Registrar of Political Parties and such a dispute would promptly be referred to the Registrar of Trademarks. Therefore, while the Political Parties Act and the Trademarks Act allow for registrations of slogans and names, these registrations are only enforceable within the fields of politics and commerce respectively.

5. Did Waititu plagiarise his concession speech?

As explained in point no. 3 above, Dr. Kidero won the Nairobi gubernatorial race. Kidero’s closest challenger Ferdinand Waititu is reported to have written and posted online a concession speech in which he congratulates Kidero on his win, thanks his supporters urging them to work together with the Governor-elect to build ‘a stronger, better country.’ The only concern raised was that Waititu’s alleged concession speech appeared to have relied heavily on US Presidential Candidate John McCain’s 2008 concession speech when Barack Obama was declared winner of the Presidential election. A side-by-side comparison of the two speeches is available here.

Notable mentions:

Last year, IP Law expert and lecturer Mr. Onesimus Kipchumba Murkomen resigned from his teaching position at the Moi University’s School of Law to run Senator in Elgeyo Marakwet County. At the time, he was also serving as a Board Director of the Anti-Counterfeit Agency (ACA), a position he also relinquished in order to pursue his political ambitions. The first-time politician was successful in his Senatorial bid trouncing political heavyweights like Nicholas Biwott.

Finally this blogger recalls reading of media reports of campaigns in Narok County where political aspirants vowed to protect the Maasai Shuka and other indigenous cultural products and resources from being “stolen” by “outsiders”. Indeed such a campaign promise was timely and relevant given the widely reported Louis Vuitton collection that misappropriated the Maasai Shuka, which brought back memories of the intellectual property sagas surrounding the Kiondo and the Kikoy.

Recently, the people of Zimbabwe went to the polls in a referendum vote for the acceptance or rejection of a draft new Constitution to replace the Lancaster Constitution of 1980, tied with their independence from Britain in 1980.

A copy of the Constitution Select Committee (COPAC) Final Draft Constitution is available here.

Local media reports now indicate that Zimbabweans have voted in overwhelmingly in favour of the new Constitution.

This blogger has been going through Zimbabwe’s new Constitution and came across three interesting provisions, as quoted below:

16 Culture

(2) The State and all institutions and agencies of government at every level, and all Zimbabwean citizens, must endeavour to preserve and protect Zimbabwe’s heritage.

(…)

33 Preservation of traditional knowledge

The State must take measures to preserve, protect and promote indigenous knowledge systems, including knowledge of the medicinal and other properties of animal and plant life possessed by local communities and people.

(…)

71 Property rights

(1) In this section –

property means property of any description and any right or interest in property.

The cumulative effect of sections 16 and 33 is the elevation of traditional knowledge, traditional cultural expressions and genetic resources to constitutional status. However, unlike the Kenyan Constitution, the positive obligation imposed on the State to protect TK, TCEs & GRs is somewhat watered down by the inclusion of the words “endeavour to” and “take measures to” in respect to sections 16 and 33 respectively. Therefore, the people of Zimbabwe may not be able to hold the State accountable for any misappropriation, misuse, piracy or other violations of rights associated with their TK, TCEs & GRs.

The definition in Section 71 is significant because it can be taken to refer to more than simply right of ownership and ownership of tangible assets. Indeed, this section may be interpreted to extend the definition of property to include intangible assets such as intellectual property (IP).

In other news from Zimbabwe, the BBC reports that a trademark dispute is brewing over the use of the name of President Cde Robert Gabriel Mugabe as a brand by a local fashion house. Over the past three years, the House of Gushungo has been using the octogenerian Mugabe’s signature as a logo, has printed it on t-shirts, berets and other garments. It is now reported that the ZANU-PF (Mugabe’s party) is currently trying to gain control of House of Gushungo’s Robert Mugabe clothing line. In the words of ZANU PF spokesman Rugare Gumbo:

“It’s an intellectual property which we have to maintain. We have allowed every Jack and Jill to do what they like about the whole thing. The main reason why the brand is so popular is that he is a highly intellectual leader. But we want to control it to make sure whoever is going to use it will have to pay something. So we are going to restrict it as a party.”

This blogger wonders how ZANU PF intends to formalise its rights in Robert Mugabe’s name and signature. Both copyright and trademark registrations are open to ZANU-PF but may be subject to the President’s consent. With the Zimbabwe elections slated for July this year, IP registrations may allow ZANU PF to safeguard and commercialise the Robert Mugabe brand fully.

Technology transfer is crucial, critical and necessary for 3rd world development, without which it would be difficult to transfer necessary equipment, knowledge and aspects of development from one place to place. However it would be amorphous to do this in the absence of proper legal and management framework. Africa and other developing nations in particular would benefit from research that has taken billions of dollars of the developed world instead of reinventing the wheel. In technology transfer it is not only developing nations that will benefit but also Developed nations will get opportunity to license their technologies and recoup massive investment they have put in this technologies.

Technology could originate from several places and transferred again to different places e.g. from university to university, government to government or from company to company. Furthermore, technology could be transferred from individual to individual, expired patents to the public or through open source and open access. These are just some examples of the ways in which technology could be transferred.

The Third World has lagged behind in terms of development for decades. Development could mean different things to different people, however due to modernity and globalization development will almost mean the same thing globally. Holistic development therefore could address most of challenging problems i.e. socio-economic, political and environmental problems. Ignoring any of these four aspects of development can be disastrous and jeopardize the gain of the other. Any technology that take into consideration the above four aspect of holistic development can take the world to greater heights.
Since technology is conceived, developed and tested in different areas it is important to transfer most of these technologies to other areas for various reasons including but not limited to business, charity, research and development. Technology can be transferred in a number of ways i.e. through university to university, government to government company to company individual to individual, through expired patents, open source, open access etc. The most important thing is agreements, frameworks and channels for technology transfer to the Third World

When technology is transferred to new places the effect is felt positively or negatively and sometimes both. In Africa the positive effects has been seen socially where entertainment has taken new dimension, culture has changed, religion has taken new shape. Lifestyle, fashion and nutrition is a new story. In economy e-commerce, e-banking, advertisement and computers have revolutionized third world. In political sphere technology has greatly changed how politics takes place in third world, totalitarianism, tyranny and dictatorship are giving into democracy courtesy of social media, biometric voter registration, electronic tallying and extensive media coverage during voting. Environmental development has also benefited immensely on technology transfer e.g. the development of systems that consumes environmental waste e.g. plastic recycling, cloned trees that grow faster, development of crop and trees which are pest and disease resistant.

However on the other hand technology has to some degree adversely affected the Third World in a number of ways. Socially in entertainment has distorted life of people since modern entertainment is expensive, traditional cultures are being eroded at the expense of western culture; western religion is killing fast our religion. In nutrition people no longer take food with less nutritional and medicinal value but have resorted to fast-foods. Third World economy has also suffered at the hands of technology, for instance, increased ways of fraud, counterfeiting, piracy and cyber-crime.

As a final parting shot, one wonders: Is technology good or bad? My answer would be that technology is neither good nor bad it depends on how the technology in question is used.

Intellectual Property (IP) commercialisation is undoubtedly the next economic driver globally. IP management is therefore important to all source of IP assets especially, our universities. Globalization has reduced the world into one village and nobody can ignore IP which has already taken shape and positioned itself as the next solution to the major problems facing humanity globally.

The truth of the matter is that a part from few 3rd world Universities and specifically African Universities, many are ill prepared to compete in the global arena. Interestingly is that due to modernity and globalization, there is a serious pressure for our universities to move at the same pace globally. However challenges from colonialism, capitalism and globalization have affected Third World University education immensely. It is worth mentioning however that these three issues have their negative and positive effect.

The immediate challenges these universities face, include but not limited to; poor or outdated equipment, whether in laboratories, fields or offices, syllabus or curriculum adopted also sometimes is only to suit the prevailing socio-economic, political and environmental factors. The personnel experience, strength and qualification is also sometimes compromised due to this challenges faced by our universities. This therefore extends to political goodwill, culture and traditions. The danger with all this is that final graduates will not have hand on experience, be competitive and convert intangibles into tangible.

However intellectual property and technology transfer is a light at the end of the tunnel. Our universities could concentrate their studies on expired patents, utility models, and outdated copyright with the aim of coming up with much needed usable technologies. With proper strategies and policies for IP management, our universities will be more innovative as well as inventive. Our universities must begin developing institutions and offices that will spearhead IP management as this could be a source of wealth creation, attracting grants, loans, donors, companies, investors etc to the university. Our universities must engage competent expertise who are capable to advise on protection and commercialisation of IP since universities, by their very nature, are custodians of the Society’s generated knowledge. IP can also act as value addition increasing the self-worth of the University. Why would somebody feel proud of being a product of Harvard University? Is it not because of the total sum of its IP value? Our universities could also facilitate development and assist the locals through initiating start ups, spin-outs, research and development (R&D), business incubation and innovation. They could also generate affordable local technologies for local problems. The list of how IP can benefit both the University and the society is endless but how can this be made a reality?

The starting point must be massive awareness campaigns about IP across our universities and the society at large. We can then move to have forum where the Universities can discuss, share their challenges and find solution to teething problems related to IP policy formulation and management and this can easily be done through ICT. The universities can then start IP departments and offices before achieving mature stage where IP is propelled by serious company or Government Corporation within the University. Africa and other developing nations have missed many opportunities to develop for many reasons, ranging from historical development injustices, corruption and jumping into ideas and ideologies that they did not clearly understand. IP development strategies under WIPO seem real and this should not elude us again. As I have always warned, IP is like a double edge sword capable of cutting both sides or IP is a tool and just like any other tool it depends on how it is used and who is using it. It is therefore my deep concern that University should not jump into IP without the right advice, knowledgeable personnel, proper structure and framework. In this I give kudos, complement and recognize the work already being done by CIPIT. However this alone will not achieve the desired result if the vast elite & lawmakers remains ignorance about IP including our universities. Therefore our Universities and internal country institutions must play their noble, necessary and critical role towards IP strategies.